Law & Disorder —

RapidShare didn’t infringe on copyrights, says US court

Perfect 10 just doesn't get it when it comes to copyright. The adult …

The US District Court of California denied adult entertainment company Perfect 10's request for an injunction against file-sharing service RapidShare on Thursday, saying that the company did not offer sufficient proof that RapidShare itself had infringed on Perfect 10's copyrights.

Perfect 10 filed its lawsuit against RapidShare in late 2009, alleging that the Germany-based service illegally hosted the company's images for its members to distribute and download. Since P10 is a for-pay service, it argued that RapidShare was violating its distribution rights and making money off of its stolen content due to RapidShare's affiliate program that pays members for referring new users.

Perfect 10 also argued that RapidShare had induced users to download its adult content because, after all, RapidShare is good for nothing but copyright infringement. Basically, the mere existence of RapidShare as a file sharing service was equivalent to inducement in P10's eyes.

In her ruling this week, District Judge Marilyn L. Huff said that P10 failed to make a sufficient case of direct infringement against RapidShare, though she did concede that the service had specific knowledge of infringement by its users thanks to the copyright notices sent. She also said that P10 didn't show enough evidence to convince the court of inducement, and that P10 couldn't even show that it would suffer irreparable harm if she didn't order an injunction (the fact that Perfect 10 waited four years from the time it first discovered its content on RapidShare to file a lawsuit didn't help its case). As such, she said the public interest would not be served by an injunction and she therefore denied P10's request.

RapidShare founder Christian Schmid was understandably happy with the decision. "The view that RapidShare does not promote any infringements of copyright, unlike other file-hosts, appears to be gradually catching on," Schmid said in a statement. "It is a milestone for us that this is also happening in the US. We are happy that the court in California has not bought into the odd line of argument put forward by Perfect 10 and we look forward to increasingly emphasise the major difference between RapidShare and illegal share-hosts."

It should be noted that RapidShare's success in this case was in no small part due to P10's inability to successfully follow up on most of its claims. The porn company has a long and somewhat pitiful history of unsuccessfully suing majorcompanies for what it considers copyright infringement. P10 has shown that it will go after anyone associated with a company that might have touched one of its images, including credit card processors (a case the Supreme Court refused to hear). It seems that P10 is a "shoot first, ask questions later" kind of company, and RapidShare should just count itself lucky that it was P10 behind this lawsuit and not a more competent body like the RIAA.

RapidShare has been on a roll lately with court decisions. Earlier this month, a German court ruled that RapidShare wasn't liable for distribution since it doesn't make files publicly available, and therefore would not have to filter user uploads. P10 will undoubtedly continue to push ahead with its legal attack, however, and a trial is the next logical step after a failed injunction request.

Jacqui Cheng
Jacqui is an Editor at Large at Ars Technica, where she has spent the last eight years writing about Apple culture, gadgets, social networking, privacy, and more. Emailjacqui@arstechnica.com//Twitter@eJacqui

1. They don't understand that something simply being somewhere they don't control is not necessarily infringment.

2. The courts are more stringent and careful in the proof requirements for the porn industry because of the previous past battles fought over what porn is and what it is not. It would turn into a "its not porn so its not theirs so there was no infringment" stupid thing battle.

3. Who cares that some womans pics are spread all over the internet to begin with when that woman makes her living from letting people see her performing sexual acts?

How could RapidShare not be infringing on P10's copyright? It hosted and distributed content without a license from P10 and P10 had information proving that.

Then they did a very poor job of presenting the evidence, because the judge's decision seems to indicate that P10 failed to produce sufficient evidence to support it's claims of direct infringement, inducement, and need for an injunction. Note that the mere existence of the files on Rapidshare's service is not itself evidence that Rapidshare infringed on P10's copyrights (though it's pretty good evidence that someone has infringed), nor that Rapidshare is inducing people to infringe. I haven't read the decision in detail yet, though so there's probably more (and better) explanations in there.

1. They don't understand that something simply being somewhere they don't control is not necessarily infringment.

2. The courts are more stringent and careful in the proof requirements for the porn industry because of the previous past battles fought over what porn is and what it is not. It would turn into a "its not porn so its not theirs so there was no infringment" stupid thing battle.

3. Who cares that some womans pics are spread all over the internet to begin with when that woman makes her living from letting people see her performing sexual acts?

Clever. You put 2 somewhat interest points up and then had them lead into a troll.

1. They don't understand that something simply being somewhere they don't control is not necessarily infringment.

2. The courts are more stringent and careful in the proof requirements for the porn industry because of the previous past battles fought over what porn is and what it is not. It would turn into a "its not porn so its not theirs so there was no infringment" stupid thing battle.

3. Who cares that some womans pics are spread all over the internet to begin with when that woman makes her living from letting people see her performing sexual acts?

Clever. You put 2 somewhat interest points up and then had them lead into a troll.

LoL, didn't mean to.

The last one was a little shot at what some people in the jury might be thinking had a case actually gotten that far.

Rapidshare is more like a personal storage locker type of service like Public Storage or RoboVault. They can be held liable if you put some illegal goods in your storage locker that they just host. Thats like prosecuting the pricipal of a school when they do a locker check and find drugs in a students locker.

Rapidshare is more like a personal storage locker type of service like Public Storage or RoboVault. They can be held liable if you put some illegal goods in your storage locker that they just host. Thats like prosecuting the pricipal of a school when they do a locker check and find drugs in a students locker.

No they can't. First off there should be no way that they even know what is in the locker. If its a requirement that any storage company needs to know what their customers are storing, they won't exist very long. Never mind the whole privacy issue.

Rapidshare is more like a personal storage locker type of service like Public Storage or RoboVault. They can be held liable if you put some illegal goods in your storage locker that they just host. Thats like prosecuting the pricipal of a school when they do a locker check and find drugs in a students locker.

No they can't. First off there should be no way that they even know what is in the locker. If its a requirement that any storage company needs to know what their customers are storing, they won't exist very long. Never mind the whole privacy issue.

I believe the second sentence was a typo and the poster probably meant to type "They CAN'T be held liable..."

I'm really surprised that the tv networks don't go after sites like rapidshare. I watch 95% of my copious amount of television through a rapidshare clone. A simple search on filestube gets me what I want 90% of the time and then 5 minutes later I am watching the files nicely blown up on my 32" HDTV, via a $99 DVD player that plays the files through a USB port. It "just works", far better than anything Apple has ever designed. I've bought a couple of things via iTunes and similar legal avenues, but it just costs far too much and is too hard/expensive to get working on my TV.

I'm really surprised that the tv networks don't go after sites like rapidshare. I watch 95% of my copious amount of television through a rapidshare clone. A simple search on filestube gets me what I want 90% of the time and then 5 minutes later I am watching the files nicely blown up on my 32" HDTV, via a $99 DVD player that plays the files through a USB port. It "just works", far better than anything Apple has ever designed. I've bought a couple of things via iTunes and similar legal avenues, but it just costs far too much and is too hard/expensive to get working on my TV.

Sites like Rapidshare are inherently protected (to me) due to the principle of the thing. It's someone's own business what they host in their own private locker and the company in question doesn't have a right to go in looking in it; even if they did, good luck getting in the password protected rar archives.

On a practical basis, it could be possible to stop these sites by legally requiring them to perform certain actions / place restrictions on files 100 megs or over downloaded 10 or more times. However, this would basically screw over the site and all of its legitimate users. I'm not really sure what could be done - a court / individual given specific powers to apply on a per-site basis, perhaps?

Honestly, I don't see any of this passing court muster.

They could try going after the big uploaders, but do the media corps still have the stomach for that?

Then they did a very poor job of presenting the evidence, because the judge's decision seems to indicate that P10 failed to produce sufficient evidence to support it's claims of direct infringement, inducement, and need for an injunction. Note that the mere existence of the files on Rapidshare's service is not itself evidence that Rapidshare infringed on P10's copyrights (though it's pretty good evidence that someone has infringed), nor that Rapidshare is inducing people to infringe. I haven't read the decision in detail yet, though so there's probably more (and better) explanations in there.

Rapidshare is not a US company.. so safe harbor would not apply, if I understand correctly (then again, IANAL).. as such, existence of the files on rapidshare's servers would constitute infringement (definitely "making available", trivial to show distribution to the public).

The files are only publicly available if the uploader posts a link to them on a website somewhere.

You can't just skim through all the files on Rapidshare and pick out whatever you want. Each file is represented by a unique identifier. It's not like a P2P service where they provide a search feature for their users' personal files.

By default, no Rapidshare file is publicly available. That's all on the user.

Then they did a very poor job of presenting the evidence, because the judge's decision seems to indicate that P10 failed to produce sufficient evidence to support it's claims of direct infringement, inducement, and need for an injunction. Note that the mere existence of the files on Rapidshare's service is not itself evidence that Rapidshare infringed on P10's copyrights (though it's pretty good evidence that someone has infringed), nor that Rapidshare is inducing people to infringe. I haven't read the decision in detail yet, though so there's probably more (and better) explanations in there.

Rapidshare is not a US company.. so safe harbor would not apply, if I understand correctly (then again, IANAL).. as such, existence of the files on rapidshare's servers would constitute infringement (definitely "making available", trivial to show distribution to the public).

The DMCA safe harbor laws only apply to US companies, even if the relevant lawsuits are argued in US courts? That would be news to me. Either way, the judge concluded that P10 hadn't provided sufficient evidence to rule that Rapidshare was infringing, nor that they were inducing infringement. If safe harbor hadn't applied, then P10's lawyers would have to have been pathetically unprepared or incompetent, given that the files were demonstrably on Rapidshare's servers.

I'll have to re-read the relevant portions of the DMCA and look at the judge's ruling tonight, if I get the time.

The way I'd like copyright to work if you make money off the trade of copyrighted items you get hit with fines and go to court to sort out the criminal infringement.

In cases like this the site is a middle man used at times against it's will fine them for negligence, then trace the poster and fine them with violations . After a certain point is hit fine them both for cullsion to profit off the trade of unlicensed copyright items, the poster will get hit with the least fines the site will be forced out of business or be forced to charge people hundreds for violations and go after the poster .

Youtube is a bit different ads can be nuked per page for X or Y content or made unavailable for paying members, this is a stop gap between what I consider fair use and profiting off unlicensed content.

If we had a guild in place to sub license copyrighted stuff it would at least help with the flow of information annd lessen take downs to fair use items. /rambling incoherent intellectual

i'll prefer RapidShare and the other online storage sites because they do have controls and procedures in place to handle copyright infringement cases, to a protocol such as bittorrent where there are no controls at all...

i'll prefer RapidShare and the other online storage sites because they do have controls and procedures in place to handle copyright infringement cases, to a protocol such as bittorrent where there are no controls at all...

to handle bittorrent, the 3-strikes law must be pushed through...

That's nonsense as 3 strikes is a zero thought law that that places to many rights and freedom's of the public up the courts on a case by case basis and like fair use would overwhelm the courts with inane and frivolous cries of non criminal infringement ,non criminal infringement is simply to much for the courts or lawenforcement to handle.

Torrents and any other form of illicit profit making you focus on the the trade of unlicensed copyrighted items in a around illicit profit being made from the distribution or sell of those items, you make exemptions for informational(google) and educatinal sites that the courts can look at and see the difference in a site that indexes everything(watered down description, fair use will reinforce this) vrs a site that stores and trades information for "real" educational prepossess(based on fair use precedent) and a person at their own cost sharing and distributing media(if it dose not generate any money for any reason it should qualify as fair use, doing so will protect free speech in the modern age).

Basically it filters down like this a large or well known site (any torrent search site) can not make money off anything related to torrents or unlicensed copyrighted files, if they can not show that the site is ran by unattached funds and that the site generates no illicit profit the courts will ok it.

A site that has ads and donations and trades in unlicensed copyrighted items, this is a criminal offense that should ganarer fines and further hearings.

A site/blog,ect that trades in unlicensed copyrighted items for any monetary gain based around education its up to the courts to decide the merits there of.

A site/blog,ect that trades in unlicensed copyrighted items for any monetary gain based around information or news its up to the courts to decide the merits there of.

Youtube/file shearing sites will be fined or worse if it can be proven they are negligent or assisting in the trade of copyrighted files for profit(most of these sites work hard to weed out infringement so perhaps they get a warning time passes then a fine time passes then they go to court to figure it out).

A blog/site with ads and donations thats trying to follow the law and has copyrighted items on it must follow fair use as it is interpreted now.

A blog/site that dose not have ads or donations is generally ignored until it hits X amount of bandwidth then it has to cough up bank records and prove its not trying to make anything via the site or its files, if a loss can be shown court costs are waved.

Basically shift the focus of infringement to the flow of money around copyrighted items, if unlicensed then the courts/precedent will want to look at it, if its not trying to make money off it in any shape or form then its most likely fair use or a deriveded there of.

The way I'd like copyright to work if you make money off the trade of copyrighted items you get hit with fines and go to court to sort out the criminal infringement.

Technically all work is copyrighted.

Practically all traded work is copyrighted.

In the YouTube vs Viacom case it came to light that Viacom was filing takedown notices on it's own content (uploaded by Viacom). How is YouTube (or any other host) supposed to know then when a work is protected?

Quote:

In cases like this the site is a middle man used at times against it's will fine them for negligence, then trace the poster and fine them with violations . After a certain point is hit fine them both for cullsion to profit off the trade of unlicensed copyright items, the poster will get hit with the least fines the site will be forced out of business or be forced to charge people hundreds for violations and go after the poster .

As I said, all work is copyrighted, why would you target the middle man for doing nothing illegal?

Would you argue that public storage facilities are negligent if drugs are found in the lockers?

Quote:

Youtube is a bit different ads can be nuked per page for X or Y content or made unavailable for paying members, this is a stop gap between what I consider fair use and profiting off unlicensed content.

If we had a guild in place to sub license copyrighted stuff it would at least help with the flow of information annd lessen take downs to fair use items. /rambling incoherent intellectual

You might as well assume everything is copyrighted and the hosts should just charge per bitrate a "license" fee held per file per upload and download until the copyright holder asks for the payment.

The way I'd like copyright to work if you make money off the trade of copyrighted items you get hit with fines and go to court to sort out the criminal infringement.

Technically all work is copyrighted.

Practically all traded work is copyrighted.

In the YouTube vs Viacom case it came to light that Viacom was filing takedown notices on it's own content (uploaded by Viacom). How is YouTube (or any other host) supposed to know then when a work is protected?

Quote:

In cases like this the site is a middle man used at times against it's will fine them for negligence, then trace the poster and fine them with violations . After a certain point is hit fine them both for cullsion to profit off the trade of unlicensed copyright items, the poster will get hit with the least fines the site will be forced out of business or be forced to charge people hundreds for violations and go after the poster .

As I said, all work is copyrighted, why would you target the middle man for doing nothing illegal?

Would you argue that public storage facilities are negligent if drugs are found in the lockers?

Quote:

Youtube is a bit different ads can be nuked per page for X or Y content or made unavailable for paying members, this is a stop gap between what I consider fair use and profiting off unlicensed content.

If we had a guild in place to sub license copyrighted stuff it would at least help with the flow of information and lessen take downs to fair use items. /rambling incoherent intellectual

You might as well assume everything is copyrighted and the hosts should just charge per bitrate a "license" fee held per file per upload and download until the copyright holder asks for the payment.

Is that what you would like?

Its a fallacy to think everything is copyrighted(the RIAA dose and failed with such attempts to "protect" copyrights that are not part of them) at least to the extent an owner will bring you to court over reasonable cause and IMO reasonable cause is gaining an illicit profit off the trade of copyrighted items, ISPs and informational/educational sites are exempt leaving anyone else to either not try and make money of copyrighted items(that is not protected by fair use) or get a frakking license.

The middle man may be covering for the person doing something illegal to keep people using the service, again this need to be handled by the courts at the bequest of the copyright owner simply because there is a higher chance of wrong doing with storage sites due to their for profit nature.

You need a guild or something to handle sub licensing then to figure out a decent profit shearing scheme then allow infringes to join if they pay a fine that amounts to half the metered rate at half the time period.

Why do you call it a fallacy when you're the one acting like everything is copyrighted?

How does the middle man know if something is copyrighted? I already gave you an example where Viacom filed takedowns for it's own legitimately uploaded content.

The only way a guild can handle sublicensing is if you treat everything as copyrighted.

Mmm lets see *zippys brain starts grinding and bleching out smoke and the creaking of cogs and gears can be heard for miles around* currently we have 4 levels of copyrighted item use, non copyrighted/public domain thus mostly untouched by the copyright system,fair use which is argued daily, licensed item use, and infringement which is argued daily with a small portion of it being real crime.

Fair use and infringement(non commercial) touches the lives of thousands of people daily and can effect many peoples right of personal use, archiving, format shifting, and free expression/speech.

Commercial infringement is mostly counterfeiting as going after more vague types of illicit profit is difficult due to various loopholes and oversight within copyright law.

So we add a level thats a combination of 2 other levels where the public can use the wealth of media at their leaser as long as they do not profit from it in any way shape or form, this takes pressure off certain areas of fair use,non commercial infringement and the vast majority of frivolous lawsuits(IE the public can not be complicated in any copyright right crime civil or criminal unless they have tried to make money from the process).

Sites that attempt to make money off being he middle man can be giving some leeway but mostly the courts will decide if the model is gaining a illicit profit, basically the status quo is used to look at the case with a caveat where if money is made from the negligent or willing process of trade or sale of copyrighted items there is a moderate possibility a crime is taking place.

Basically it removes the end user from the take down process and focuses on the site itself, their rules and their ability to reasonably remove content that the copyright owner has bitched about if files are removed in a timely manner(set by the court) then they are not breaking the law, its a stop gap measure to allow a site to get its records and what not in order and appeal .

IMO its better than the DMCA and stealing more rights from the public, if you are a site that relies on outside funds that dose not fall within the bounds of exemption then you will have just have to abid by fair use and the letter of the law or deal with the copyright bullies in court in a less frivolous manner than today.

Most popular content is copyrighted tus you are going to have to do something about what the public can reasonably do with it(dose not try and make money in any shape for form is not a crime in any shape or form) and what business and the copyright owner can do with it.

How do you suggest you balance the needs of the public and the needs of the media industry?IMO Profit must be protected but not at the cost of user rights.

You just changed the subject. I thought we were talking about a compulsory license model with fees and profit sharing, now you're talking about changing fair use where non commercial/profit is allowed.

You just changed the subject. I thought we were talking about a compulsory license model with fees and profit sharing, now you're talking about changing fair use where non commercial/profit is allowed.

I am talking about both really, one is to protect the public from the over zealousness of the copyright owners and system in general the other is a way for profit organizations can get in business with the media industry akin to net radio licensing fees but based more on page views than over all bandwidth without having to haggle and hassle with big content you go threw a hopefully slimmer and more coherent middle a man.

You just changed the subject. I thought we were talking about a compulsory license model with fees and profit sharing, now you're talking about changing fair use where non commercial/profit is allowed.

To be fair to Zippy, I think he's arguing that we need to implement both, and that his latest post was almost entirely a reply to your question about 'acting like everything is copyrighted'.

That said, I think that Zippy's replies are largely hand-waving around the difficult stuff, for example:

ZippyDSMlee wrote:

Sites that attempt to make money off being he middle man can be giving some leeway but mostly the courts will decide if the model is gaining a illicit profit, basically the status quo is used to look at the case with a caveat where if money is made from the negligent or willing process of trade or sale of copyrighted items there is a moderate possibility a crime is taking place.

Basically it removes the end user from the take down process and focuses on the site itself, their rules and their ability to reasonably remove content that the copyright owner has bitched about if files are removed in a timely manner(set by the court) then they are not breaking the law, its a stop gap measure to allow a site to get its records and what not in order and appeal .

According to this, instead of having inconsistent case-law and vague rules about what counts as fair use, we'll have inconsistent case-law and vague rules about what counts as 'illicit profit' for 'middle men', for whatever definitions we adopt for both terms. I don't see that shifting the vagueness around is going to be terribly helpful myself, but Zippy's bee pretty up-front about his ideas being not-yet fully-formed and changing as we discuss things.

As for acting like everything's copyrighted, Zippy's system would change that in the sense that if you can guarantee that you don't meet the criteria for making a profit off of whatever it is that you're doing, then you can act like nothing at all is copyrighted. That bit about not making a profit becomes the pivotal point of the argument then, and we're not going to be able to have much of a discussion on that point unless we further specify what making a profit means.

You just changed the subject. I thought we were talking about a compulsory license model with fees and profit sharing, now you're talking about changing fair use where non commercial/profit is allowed.

To be fair to Zippy, I think he's arguing that we need to implement both, and that his latest post was almost entirely a reply to your question about 'acting like everything is copyrighted'.

That said, I think that Zippy's replies are largely hand-waving around the difficult stuff, for example:

ZippyDSMlee wrote:

Sites that attempt to make money off being he middle man can be giving some leeway but mostly the courts will decide if the model is gaining a illicit profit, basically the status quo is used to look at the case with a caveat where if money is made from the negligent or willing process of trade or sale of copyrighted items there is a moderate possibility a crime is taking place.

Basically it removes the end user from the take down process and focuses on the site itself, their rules and their ability to reasonably remove content that the copyright owner has bitched about if files are removed in a timely manner(set by the court) then they are not breaking the law, its a stop gap measure to allow a site to get its records and what not in order and appeal .

According to this, instead of having inconsistent case-law and vague rules about what counts as fair use, we'll have inconsistent case-law and vague rules about what counts as 'illicit profit' for 'middle men', for whatever definitions we adopt for both terms. I don't see that shifting the vagueness around is going to be terribly helpful myself, but Zippy's bee pretty up-front about his ideas being not-yet fully-formed and changing as we discuss things.

As for acting like everything's copyrighted, Zippy's system would change that in the sense that if you can guarantee that you don't meet the criteria for making a profit off of whatever it is that you're doing, then you can act like nothing at all is copyrighted. That bit about not making a profit becomes the pivotal point of the argument then, and we're not going to be able to have much of a discussion on that point unless we further specify what making a profit means.

Meh my ideas are half assed but bits here and there are not, I sometimes can find them an string them along incoherently and make up a decent sounding something or other as I go along. LOL.

What I would like is to remove the ability of copyright owners to harass non profit attempting people and sites over any reason(sharing,fan sites,fan recreations,ect as long as its not trying to make anything off the copyright, if so then it needs to be licensed).

The middle man sites like youtube and such are for profit ventures that can not be easily protected by fair use or personal use themes so they have to meet current scrutiny, and since its much more complicated than a take down or non commercial infringement the courts kinda have to hold the hands of the process as it moves forward to resolution. Shifting legalities and mess to profit based ventures leaving the public out of it seems the most logical path to take.

But as I said above I can only ponder and share my ideas so much before something has to give. At least my humor is long and winding and my sanity long gone

At present, the copyright law is such that services like YouTube only have to respond to DMCA takedown notices.

It could well be that some copyright holders might accept the DMCA regime for web page hosting services, because there is a clear relationship between the person paying money for web hosting and the hosting service... but would like to see things like RapidShare and YouTube (but not, say, Twitter or LiveJournal; Flickr and Picasa might be a borderline case) made illegal unless each submission is manually reviewed first - because it is too easy for someone to get an E-mail address from somewhere and then upload copyrighted media.

This, though, explains why Perfect 10 failed; courts will not overturn specific legislation unless somehow the DMCA regime is un-Constitutionally violating the rights of copyright owners. I think that would be hard to establish. Instead, Perfect 10 will have to ask Congress for new legislation.